2019 M L D 1597
[Balochistan (Sibi Bench)]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
MUHAMMAD AZAM and another ---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No.(s) 14 and Criminal Revision No.(s) 9 of 2019, decided on 6th May,
2019.
(a) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd and common intention---Appreciation of evidence ---Benefit of
doubt ---Hearsay evidence---Unnatural conduct of eye -witnesses ---Interested witnesses ---
Scope ---Complainant claimed that hi s brother while grazing goats disappeared, he searched
for him, but could not succeed and that through Balochi Hal -o-Awal he came to know that
accused along with co -accused persons had committed the murder of his brother and had
buried his dead body at an unknown place ---Validity ---Complainant's statement reflected that
it was based on hearsay evidence ---Complainant had not directly witnessed the crime ---
Complainant had failed to report the matter to police of disappearance of his brother ---
Complainant's statement was not helpful for the case of prosecution ---Both eye -witnesses
had failed to maintain the exact date, month and year of the occurrence; had remained mum for two years despite having relations with the complainant party and belonging to the same tribe---Statement of second eye -witness was silent regarding burial of the dead body--- Both
eye-witnesses had unanimously admitted that complainant had brought Holy Quran and had
enquired about his brother to which they had informed the complainant about the murder and burial of his brother ---Complainant's source of knowledge that both eye -witnesses had
secrets of his missing brother was not disclosed ---Eye -witnesses were close relatives of the
complainant party, thus for a prudent mind it was difficult to presume that neither they had resisted the occurrence nor the culprits had harmed them to become witnesses of the occurrence---Conduct of witnesses created reasonable doubt with regard to their presence at the place of occurrence or witnessing the crime wit h their open eyes ---Police surgeon did not
take into possession the bone marrow of the dead body for DNA test to establish that the exhumed dead body was not of someone else, but of the brother of complainant ---
Prosecution failed to establish that either t he missing brother of the complainant was
murdered or that he was buried at the place pointed out by the second eye -witness ---
Nomination of accused persons after two years of the occurrence was based on presumptions ---False implication of accused person co uld not be ruled out of consideration--
-Accused was entitled to be extended the benefit of doubt as a matter of right ---Appeal was
accepted and the judgment passed by Trial Court was set aside.
Arshad Mehmood Khan v. The State 2017 YLR Note 370 and Tariq Pervaiz v. The
State 1995 SCMR 1345 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl -i-amd and common intention--- Ocular and medical evidence---
Contradictions ---Statement of sole eye- witness was contradictory to the medical evidence ---
Eye-witne ss had stated that deceased was slaughtered with knife but he did not state anything
about culprits making fire shots upon the deceased---Post -mortem report prepared after
exhumation of dead body of deceased showed that two bullets were recovered from the dead
body--- Prosecution failed to establish its case.
(c) Criminal trial ---
---Benefit of doubt ---Accused is entitled to be extended the benefit of doubt as a matter of
right.
Tariq Pervaiz v. The State 1995 SCMR 1345 rel.
Ahsan Rafiq Rana for Appellant.
Jameel Akhtar Gajani, D.P.G. for the State.
Nemo for the Complainant.
Date of hearing: 26th April, 2019.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgement disposes of Crl. Appeal
No.(S)14/2019 and Criminal Revision Petition No.(S)09 of 2019.
Criminal Appeal No.(S)14 of 2019 has been filed by the appellant Muhammad Azam
son of Haji Allah Bakhsh, against the judgement dated 16th February 2019 (hereinafter
referred as, "the impugned judgement") passed by learned Sessions Judge Jaffaraba d at Dera
Allah Yar (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under Section 302/34, P.P.C. and sentenced to suffer imprisonment for life and to pay Rs.5,00,000/ - (Rupees Five Hundred Thousands) as compensation envisa ged under Section
544- A, Cr.P.C., which in case of recovery was directed to be paid to the legal heirs of
deceased Mujeeb -ur-Rehman or in default thereof to further suffer five (05) years S.I., with
the benefit of Section 382- B, Cr.P.C.
While the complain ant Ghulam Ali filed Criminal Revision Petition No.(s)09 of 2019
for enhancement of sentence of appellant from life imprisonment to that of Death sentence.
2. Facts of the case are that after acceptance of application under Section 22 -A, Cr.P.C.
by learned Justice of Peace, the Tehsildar Levies Bhag on 2nd March 2016 on the complaint
of Ghulam Ali son of Abdul Sattar, lodged FIR No.08 of 2016 at Levies Station Bhag, under
Section 302 Q & D Ordinance read with Section 34, P.P.C., stating therein that he along with his family members and brother Mujeeb- ur-Rehman was residing in tents at Basit Jhok
Qasim Shah Bhag, while his brother used to have been grazing goats and sheep. On 26th January 2014, his brother Mujeeb- ur-Rehman while grazing goats disappeared, thus he made
search of his brother, but could not succeed. He further stated that through Balochi Hal -o-
Awal he came to know that the appellant Muhammad Azam along with accused Zain -ul-
Abidin, Muhammad Aslam and Muhammad Gul alias Gulla murdered his brother M ujeeb -ur-
Rehman and buried his dead body at unknown place.
3. The appellant was arrested in the case, who was subjected to investigation and on
completion thereof, he was challaned in the trial Court. At the trial, the nominated accused Muhammad Aslam, Muhammad Gul alias Gulla and Zain -ul-Abidin were not arrested, thus
proceedings under Sections 87 and 88, Cr.P.C. were carried out by the trial Court and they were declared as proclaimed offenders.
4. Charge was framed and read over to appellant, who claimed trial. The prosecution
produced eight (08) witnesses in support of charge. On close of prosecution side, the appellant was examined under Section 342, Cr.P.C. However, neither he recorded his statement on oath nor produced any witness in his defence. On conclusion of trial and after hearing arguments, the trial Court convicted and sentenced the appellant as mentioned above
in para No.1, whereafter the appellant filed appeal, while the complainant filed criminal revision petition for enhancement of sentence awarded to the appellant.
5. Heard the learned counsel and perused the available record. In order to establish to
charge the prosecution has produced the evidence of eight witnesses. The star witnesses of the prosecution are PW- 2 Ghulam Ali (complainant), PW-3 Abdul Ghaffar (eye -witness),
PW-5 Abdul Rehman (eye -witness of burial of deceased) and PW- 6 Dr. Noor Ahmed, Police
Surgeon. The complainant of the case namely Ghulam Ali appeared in the Court as PW -2.
Perusal of his statement reflects that the same is based upon hearsay evidence. This witness
has not directly witnessed the crime rather according to him he was informed by PW- 3 Abdul
Ghaffar about committing the murder of his deceased brother Mujeeb -ur-Rehman in his
presence, while PW- 5 Abdul Rehman info rmed about the burial of deceased. Record further
reflects that PW- 2/ complainant had failed to report the matter of missing of his brother in
the concerned police station in the year 2014. Since, PW -2 through his statement has failed
to produce any direct or indirect evidence against the appellant, thus his statement is not
helpful to the case of prosecution. After discarding the evidence of PW -2, the prosecution
has left to rely upon the statements of PW -3 Abdul Ghaffar and PW -5 Abdul Rehman.
6. According to PW -3 he along with the deceased Mujeeb -ur-Rehman were grazing
herds near Jhok Qasim Shah, when the accused persons Muhammad Azam (appellant) along with absconding accused Zain- ud-Din and Muhammad Aslam arrived there in motorcycles,
who beaten the deceased. According to this witness Muhammad Azam was armed with
pistol, Muhammad Gul was having rifle, Zain- ud-Din was armed with Kalashnikov and
Muhammad Aslam was in possession of knife and Muhammad Aslam cut the throat of deceased with knife and warned PW- 3 for dire consequences, if he informs anybody.
According to this witness on query from the accused, they disclosed that they have declared
him Siya Kaar. Thereafter, two muffled face persons came over there and took the dead body
in a pick -up. Likewise, PW -5 Abdul Rehman in his statement stated that his house is located
nearby the graveyard and in the mid of night at about 2.00 a.m. two motorcyclists and one
vehicle came to graveyard, whom were in possession of dead body of deceased Mujeeb- ur-
Rehman. Accord ing to this witness on query from the accused, they disclosed that they have
declared the deceased as Siya Kaar and threatened that in case he (PW -5) informed someone
else, he will face same consequences.
7. We have given anxious consideration to the state ments of both the PW -3 and PW -5,
perusal whereof reveals that the story so narrated by both the PWs does not appeal to the logic in any sense. Initially both the witnesses have failed to mention the exact date, month and year of the occurrence. Both the wi tnesses had kept mum for complete two years and
despite having relations with the complainant party and belonging to same tribe, they did not
inform the complainant with regard to murder of his brother and his burial. Though in his
statement PW -5 has menti oned that the accused persons had brought the dead body of
deceased in graveyard, but his statement is silent about burial of his dead body. Both the witnesses unanimously admitted that the complainant had brought Holy Quran and enquired about his brother, to which they informed the complainant about the murder and burial of his
brother. Be that as it may, now question arises as to how for the first time the complainant had come to know that both the PWs had secrets of the missing of his brother and that's why
he took the Holy Quran and approached both the PWs. The story so narrated by both the PWs is also not believable for a prudent mind that the accused persons after committing the murder of deceased have taken a risk to shift his dead body to graveyard a nd after digging a
grave the deceased was buried. Admittedly such practice needs time for hours, while at the best the accused persons after committing the crime could have left the dead body at the place of occurrence. The silence of both the witnesses fo r a complete two years has rendered
their testimony unreliable and not worth credence, when otherwise they are the close relatives of the complainant party, thus for a prudent mind it is very difficult to presume that neither they made any resistance nor t he culprits harmed them and let them free to become
witnesses of the occurrence against them. Hence, the conduct of the witnesses by not making resistance or rescuing the deceased or escaping unhurt has created a reasonable doubt with regard to their prese nce at the place of occurrence or witnessing the crime with their open
eyes. It does not appeal to the logic that by killing a person in presence of his blood relations, the culprits would not attempt to cause any injury/kill the prosecution witnesses leav ing them
for evidence to be hanged. Reliance in this regard is placed on the case of Muhammad Farooq v. State 2006 SCMR 1707. Reference in this regard is also made to the case of Dohlu v. State 2002 PCr.LJ 690.
8. The statement of sole eye witness i.e. PW- 3 is also contradictory to the medical
evidence. According to PW -3 the deceased was slaughtered with knife. The statement of this
witness is absolutely silent about making any firing shots upon the deceased, while to the
contrary after exhumation of the de ad body of deceased by PW -6 Dr. Noor Ahmed, Police
Surgeon Civil Hospital Quetta has mentioned in the post -mortem report Ex.P/6 -A that two
leads of bullets were recovered from the dead body. Undisputedly, PW -6 was unaware about
the name and parentage of the exhumed dead body rather the same was disclosed to him by
the Investigating Officer and brother of deceased. PW -6 has neither took into possession the
bone marrow of the deceased nor he sent the same for D.N.A. in order to establish that the
exhumed dead body was not of someone else, but the deceased brother of the complainant.
Thus, the prosecution has failed to establish that either the missing brother of the
complainant was murdered or that he was buried at the place as pointed out by PW -5. PW -6
while examining the remaining of the exhumed dead body had failed to take into possession
the bones, while the bones are one of the best sources of D.N.A. from decomposed human remains with regard to his identity. Even otherwise, the D.N.A. report could have bee n a best
piece of evidence and most credible to establish the identity of the exhumed dead body. In absence of D.N.A. report it cannot be presumed that the exhumed dead body was of the missing brother of complainant, when otherwise the same was not identif iable. Reliance in
this regard is placed on the case of Arshad Mehmood Khan v. The State 2017 YLR Note 370 (Lahore -Rawalpindi Bench), wherein it has been held that:
"The dead body was not identifiable according to the Medical Officer. It was almost a Skelton, a surer method of its identification through DNA test has not been adopted. The decomposed condition of the dead body did not admit the possibility of procuring any forensic proof with regard to charge of sodomy."
9. We have analyzed the statements of all the witnesses with utmost care, caution and
weigh the same on all angles and observed that the same are not ringing true. The nomination of the accused persons a fter two years of the occurrence was nothing, but merely based upon
presumptions, assumptions and with ulterior motives through interested witnesses, thus false implication of the appellant by the PWs cannot be ruled out of consideration. The perusal of impugned judgement reveals that the same is suffering from mis -appreciation of material
available on record. Needless to emphasize that accused was entitled to be extended benefits of doubt as a matter of right. Reliance in this regard is placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345, wherein the Hon'ble Supreme Court has held that, "The concept of benefit of doubt to an accused is deep- rooted in our country. For giving him benefit of
doubt it is not necessary that there should be many circu mstances creating doubt if there is a
circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
For the above reasons, the appeal is accepted. The impugned judgment dated 16th
February 2019 passed by learned Sessions Judge Jaffarabad at Dera Allah Yar is set aside and while , extending the benefit of doubts, the appellant Muhammad Azam son of Haji Allah Bakhsh, is acquitted of the charge under Section 302, P.P.C. The appellant being in custody, is ordered to be released forthwith, if not required in any other case.
Consequent to the above, the criminal revision petition being devoid of merits, is
dismissed.
SA/2 9/Bal. Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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